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Shepherd v. Covidien, Inc.

United States District Court, N.D. Indiana, South Bend Division

March 24, 2014

BETH SHEPHERD and AARON SHEPHERD Plaintiffs,
v.
COVIDIEN, INC. ANONYMOUS PHYSICIAN, ANONYMOUS HEALTH CARE PROFESSIONAL CORP. and ANONYMOUS HOSPITAL, Defendants.

OPINION AND ORDER

THERESA L. SPRINGMANN, District Judge.

Before the Court is a Motion for Summary Judgment [ECF No. 23] and a Motion for Summary Ruling [ECF No. 42], filed by Defendants Anonymous Physician and Anonymous Health Care Professional Corp. On December 5, 2013, the Court issued an Order [ECF No. 34] directing the Plaintiffs to respond to the Defendants' motion by January 17, 2014, and the Defendants' to file a reply brief, if necessary, by January 24, 2014. No response has been filed. A telephone conference was held on February 25, 2014, regarding the motions, and the Plaintiffs advised that they received the motions but did not intend to respond. The pro se Plaintiffs have been given notice and an opportunity to respond to the Defendants' motions, which are ripe for ruling.

JURISDICTION

The Court has jurisdiction over this matter based on diversity of citizenship. Under 28 U.S.C. ยง1441(a), "the citizenship of defendants sued under fictitious names shall be disregarded." The anonymously named medical care providers remain in this suit under fictitious names, and their citizenship shall be disregarded for purposes of determining diversity. Although Covidien, Inc. was dismissed from this lawsuit, this Court's diversity jurisdiction continues until the end of the case. See e.g. Grinell Mutual Reinsurance Co. v. Shierk, 121 F.3d 1114, 1116 (7th Cir. 1997) ("It is well established that the requirements for diversity jurisdiction must be satisfied only at the time a suit is filed."); Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir. 1991); FDIC v. W.R. Grace & Co., 877 F.2d 614, 617 (7th Cir. 1989); Smith v. Widman, 627 F.2d 792, 799 (7th Cir. 1980) ("If jurisdiction exists at the outset of the suit, subsequent events shall not divest the Court of jurisdiction."). Because there was complete diversity at the time Covidien, Inc. filed its notice of removal, this Court continues to have jurisdiction over this matter despite Covidien's dismissal and because there has been no change with respect to the remaining healthcare providers.

FINDINGS OF FACT

1. On December 8, 2011, Plaintiffs filed their Proposed Complaint with the Indiana Department of Insurance alleging that Anonymous Physician was negligent in his care and treatment of Beth Shepherd, which resulted in third-degree burns to her vaginal cuff. The Plaintiff asserted that Anonymous Healthcare Professional Corp. was responsible for Anonymous Physician's conduct as an agent or employee of the Professional Corp.

2. On December 16, 2011, Plaintiffs filed a complaint in the Kosciusko Superior Court. Pursuant to the Indiana Medical Malpractice Act, the healthcare providers were referred to anonymously.

3. On January 10, 2012, Covidien, Inc. filed a notice of removal of the case from the Kosciusko Superior Court to this Court based upon diversity of citizenship. The Notice of Removal was based, in part, on the fact that the citizenship of the anonymously named healthcare providers was not to be considered in determining diversity.

4. On February 9, 2012, the matter was stayed pursuant to the Indiana Medical Malpractice Act until an opinion was rendered by the Medical Review Panel and Plaintiffs amended the Complaint to add the true names of the anonymous Defendants.

5. On April 2, 2013, Magistrate Judge Nuechterlein ordered Plaintiffs' counsel, on behalf of all parties, to file a joint status report.

6. On April 3, 2013, Anonymous Physician and Anonymous Health Care Professional Corp. filed a status report informing the Court that Plaintiffs' counsel, Jay Lavendar, passed away.

7. On April 4, Magistrate Judge Nuechterlein entered an order requiring Plaintiffs to file a status report informing the Court of their intention to proceed pro se or to secure counsel. The Court also ordered the parties to file a joint status report by September 16, 2013, regarding the appropriateness of continuing the stay of proceedings or any other developments relating to case management among the parties.

8. On May 3, 2013, Plaintiff Beth Shepherd submitted a status report informing the Court that she was in the process of retaining new counsel.

9. On June 4, 2013, Magistrate Judge Nuechterlein noted that Plaintiff Aaron Shepherd did not file a status report as ordered and further noted that no attorneys had appeared on behalf of Plaintiffs. The Court ordered each ...


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